This Directive establishes a general framework for informing and consulting employees in the European Community pursuant to the Commission Communication of 14 November 1995, in order to fill the gaps and counter the shortcomings in the provisions in force at national and Community levels.

ACT

Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community - Joint declaration of the European Parliament, the Council and the Commission on employee representation.

SUMMARY

The purpose of this Directive is to establish a general framework for improving the information and consultation rights of employees * in undertakings * within the European Community.

Two important principles are highlighted:

practical arrangements for information and consultation must be defined and implemented in accordance with national law and industrial relations practices in individual Member States;

when defining or implementing this framework, employers * and employees' representatives must work in a spirit of cooperation and with due regard for each other's rights and obligations.

This Directive applies to undertakings with at least 50 employees in a Member State or to establishments * with at least 20 employees in a Member State. The choice is left to the Member States, which also establish the manner in which the number of employees is calculated.

Particular provisions applicable to undertakings which pursue directly and essentially political, professional, charitable, educational, scientific or artistic aims, or aims involving information * or the expression of opinions, may be adopted on condition that such provisions already existed in national legislation on the date of adoption of the Directive.

Member States may authorise the social partners to define freely, through agreement, the procedures for implementing the employee information and consultation * requirements referred to in the Directive.

Employee information and consultation covers three areas in relation to undertakings:

economic, financial and strategic developments;

the structure and foreseeable development of employment, and related measures;

decisions likely to lead to substantial changes in work organisation or contractual relations.

Member States must establish the procedures for applying the principles set out in the Directive with a view to ensuring the effective application of employee information and consultation. They also have the option of limiting the information and consultation obligations of undertakings with fewer than 50 or 20 employees.

Confidentiality arrangements are included, to the effect that:

experts and employees' representatives must not disclose any information which has expressly been provided to them in confidence, even after expiry of their term of office;

within conditions laid down by national legislation, an employer may be exempted from the information and consultation obligation where complying with it would seriously harm the functioning of the undertaking or would be prejudicial to it.

When carrying out their functions, employees' representatives must have adequate protection and guarantees to enable them to perform their duties.

The Directive makes the Member States responsible for ensuring compliance with its provisions (through adequate administrative or judicial procedures at national level).

The following are regarded as serious breaches of the obligations laid down in the Directive:

total absence of information and/or consultation of the employees' representatives prior to a decision being taken or publicly announced;

withholding of important information or provision of inaccurate information rendering ineffective the exercising of the right to information and consultation.

In the event of a serious breach with direct and immediate consequences in terms of substantial changes to or termination of employment contracts or relationships, the decisions taken have no legal effect. This situation continues until the employer has fulfilled his information and consultation obligations. If this is no longer possible, the employer must establish adequate redress in accordance with the arrangements and procedures in place in the Member States.

The provisions of the Directive do not prejudice Council Directive 94/45/EC on the establishment of a European works council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees.

The Directive makes provision for a review of its application no later than five years after its adoption, in consultation with the social partners and Member States, with a view to proposing to the Council any necessary amendments.

Background

In its Communication on worker information and consultation [COM(95) 547 final - not published in the Official Journal], the Commission took stock of Community action in the field of information, consultation and participation of employees. Several directives have already been adopted in this area (' collective redundancies ', 'transfers of undertakings' and 'European works councils').

Despite the existence of specific provisions on employee information and consultation, the Commission emphasised the need to redefine the Community legal framework in order to establish more binding rules. In its Communication, the Commission set out various options for the approach to be taken by Community action and encouraged the social partners to identify the arrangements for a general framework.

Following this Communication, on 4 June 1997, the Commission launched a phase of consultation with the social partners on the basis of Article 3(2) of the Agreement on Social Policy. The European Trade Union Confederation (ETUC) and European Centre of Enterprises with Public Participation and Enterprises of General Economic Interest (CEEP) indicated their willingness to enter into Community-level negotiations on the subject. However, the Union of Industrial and Employers' Confederations of Europe (UNICE) declined to participate in negotiations, as it considered the project to be at odds with the principle of subsidiarity and felt that the subject concerned the internal organisation and management of companies and therefore came under companies' own management prerogatives.

In the absence of a consensus among the social partners, the Commission presented a proposal for a Directive.

Key terms used in the act

'Undertaking' means a public or private undertaking carrying out an economic activity, whether or not operating for gain, which is located within the territory of the Member States.

'Establishment' means a unit of business defined in accordance with national law and practice, and located within the territory of a Member State, where an economic activity is carried out on an ongoing basis with human and material resources.

'Employee' means any person who, in the Member State concerned, is protected as an employee under national employment law and in accordance with national practice.

'Workers' representatives' means the employees' representatives provided for by national laws and/or practices.

'Information' means transmission by the employer to the employees' representatives of data in order to enable them to acquaint themselves with the subject matter and to examine it.

'Consultation' means the exchange of views and establishment of dialogue between the employees' representatives and the employer.

'Employer' means the natural or legal person party to employment contracts or employment relationships with employees, in accordance with national law and practice;

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 10 October 2007 entitled 'Reassessing the regulatory social framework for more and better seafaring jobs in the EU (first phase consultation of the social partners at Community level provided for in Article 138(2) of the Treaty)' [COM(2007) 591 final - Not published in the Official Journal].
This Communication advocates various changes to European legislation on working conditions and employee information and consultation in the European Union's maritime sector. Concerning the present Directive, the Commission intends to verify, in connection with a scheduled implementation report, the conformity of the legal provisions contained in Article 3(3), according to which 'Member States may derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas'.